Herskovitz v. Commonwealth, State Civil Service Commission

Dissenting Opinion by

President Judge Crumlish, Jr.:

I respectfully dissent.

The issue, as the majority correctly notes, is whether the General Assembly intended those who serve in the Pennsylvania National Guard and Reserves to be soldiers, who by definition must have “served in the armed forces of the United States.”

The majority’s disposition of that issue is, in my judgment, inconsistent with the express language of the Code and contrary to the General Assembly’s intent.

The Military Code defines the term “soldier” as

a person who served in the armed forces of the United States, or in any women’s organization *436officially connected therewith, during any war or armed conflict in which the United States engaged, or who so served or hereafter serves in the armed forces of the United States, or in any womens organization officially connected therewith, since July 27, 1953, including service in Vietnam, and who has an honorable discharge from such service.

51 Pa. C. S. §7101.

This section does not expressly include Pennsylvania National Guard and Army Reserve service within the language of the definition. Indeed, the General Assembly’s specific inclusion of “any women’s organization officially connected therewith” illustrates its intent to exclude the Pennsylvania National Guard and Army Reserve from the benefits of the statute. Under the maxim “expressio unius est exclusia alterius,” where things are specifically designated in a statute, all omissions should be understood as exclusions. Latella v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 14, 459 A.2d 464 (1983). A court cannot supply omissions in a statute even though the court believes such omission resulted from the General Assembly’s inadvertence or failure to foresee or contemplate a case in question. Id. at 30, 459 A.2d at 473. Further inquiry into the legislative purpose of the statute would thus appear to be unnecessary.

However, the majority insists upon construing the statute’s purpose based upon its purely subjective belief Majority Opinion at pages 431-432, that National Guard and Reserve members receive the same discipline and experience and demonstrate the same public-spirited service as persons engaged in active duty service. This reasoning has no basis in the record or the Military Code. In fact, the inherent distinctions between active duty service and National Guard or *437Reserves service support the opposite conclusion. In the case of a lull-time member of the United States armed forces, the extent and nature of the training and service is significantly greater and more sustained.1

If we are obliged to go beyond the definitional provision, I would first review other provisions of the Military Code where similar language is used.

The Military Code consistently distinguishes between service in the “armed forces of the United States” and the Pennsylvania National Guard and Reserves, by expressly declaring the Guard to be the “armed forces of this Commonwealth,” 51 Pa. C. S. §1101; by requiring a minimum amount of service in either the Guard or armed forces of the United States or their reserve components when considering officer appointments in the Guard, 51 Pa. C. S. §§ 1303(b) and 901(b); by authorizing decorations for acts of bravery to “members of the Guard, Pennsylvania Guard or the armed forces of the United States or their reserve components,” 51 Pa. C. S. §3701(b); and finally by making it unlawful for governmental employers to discriminate against an “individual not on extended active duty [based upon] his membership in the National Guard or any one of the reserve components of the armed forces of the United *438States.” 51 Pa. C. S. §7309(a) (emphasis added in citations above).

Can it be seriously questioned, after reviewing these provisions, that the General Assembly was unaware of the distinguishing characteristics of these military units? Its explicit use of the phrase “armed forces of the United States” in the Codes definition of “soldier” convinces me that the General Assembly did not mean to include members of the National Guard or Reserves in that definition.

The foregoing analysis comports with the overall objective of the Codes preference provisions. Certainly, one goal is to compensate persons who surrendered the personal freedoms, benefits and opportunities associated with the normal daily civilian life in exchange for the disruption and constraints imposed by military service. See Feinerman v. Jones, 356 F.Supp. 252 (M.D. Pa. 1973). This is evident from Section 7107 of the Code relating to the calculation of a workers civil service years for seniority purposes. In this context, the worker is entitled to add his or her years as a “soldier” to the years spent on the job. Undoubtedly, this is meant to allow the soldier to “catch up” with his non-soldier colleagues who accumulated seniority while the “soldier” was unable to because of his military commitment.

The civilian lifestyle of Pennsylvania National Guard and Reserves members is not significantly disrupted so as to entitle them to the compensatory measures intended by the legislature. The instant cases demonstrate that the job applicants were able to attend law school and live relatively uninterrupted civilian lives without significant setbacks or loss of opportunity. At the same time, their full-time military counterparts had to forego the opportunities and benefits of civilian life because of their commitment to military service. Thus, *439the “catch-up” purpose of the statute could only have been meant to benefit full-time military personnel.

Pennsylvania National Guard and Reserves members undoubtedly deserve credit and reward for their laudable service. The legislature is certainly aware of the peculiarities of the Pennsylvania National Guard and Reserves and could have included such service within the statute as it did with related womens organizations. However, such measures must be provided by the General Assembly and not this Court.

Judge Palladino joins in this dissent.

The majority also appears to place some significance on the “federaE aspects of service in the National Guard and Reserves, as was done in Department of Military Affairs v. Greenwood, 510 Pa. 348, 508 A.2d 292 (1986). However, the specific statute construed in Greenwood distinctly provided benefits for “state military duty,” thus necessitating an inquiry into the federal versus state character of the National Guard training. We should not apply that reasoning to a statute which does not make this distinction between state and federal service. The General Assembly was cognizant of the federal aspects of the National Guard and Reserves service but considered it not to be a factor and simply chose not to include such service within the statutory definition of soldier.